Any physical assault should lead to an arrest

The only thing worse than physical assault is the humiliation that follows. As is the case with sex crimes, many women are reluctant to report physical assault to the police but, even when they do, they are met with a slumbering justice system.

This is according to Thandi, who was hit by a former boyfriend after a heated confrontation.
Her arm was struck, but she didn’t think much of it. Two days later, the pain and swelling led Thandi to go to the local clinic. She was referred to a hospital, where she found out that she had a fractured bone and ruptured ligaments.

Her diagnosis placed Thandi in great turmoil. Although her ex-boyfriend apologised the following day, she felt that he should still face the full extent of the law. She went to the police station and opened a case of common assault. The investigating officer informed her that the perpetrator would be asked to come to the police station and give a statement.

Thandi was shocked to hear that no arrest can be executed for a common assault charge, unlike a charge of assault with intention to cause grievous bodily harm (GBH).

She was told that, because he had assaulted her with his bare hands and there was no weapon involved, it did not meet the requirements of assault GBH. She was also told to return to her doctor and fill in a form in case the charge could be amended.

Like Thandi, society is outraged when an assault takes place and no arrest is made. This was the case in the recent incident involving the deputy higher education minister and two women he allegedly assaulted, apparently for calling him gay.

According to recordings, the assault was savage and the women’s injuries graphic. Social media was abuzz with calls for the deputy minister’s arrest and resignation. People do not understand why Mduduzi Manana has not been locked up for the attack, which he has admitted to. Another woman says she has a case pending against him for the same offence.

Meanwhile, Police Minister Fikile Mbalula is being inundated with tweets asking why the police are failing to arrest Manana. Many believe he is receiving preferential treatment. It may be, however, that he is faced with a charge of common assault, which does not lead to arrest, despite the women’s visible injuries.

This incident, like many others, raises serious questions about the justice system’s response to assault.

There is a clear distinction in criminal law between common assault and assault GBH. Assault GBH normally carries a heavier sentence, such as imprisonment. Common assault is usually only penalised with a fine.

But the process of determining which charge should be investigated should be objective. The investigating officer should not determine whether it is common assault or assault GBH, and therefore whether an arrest should follow. Any form of assault should result in an immediate arrest.

Even the courts cannot easily ascertain whether intent to cause bodily harm is present in a case of assault, relying on factors such as the nature of the weapon used, the degree of force and the actual injuries sustained.

But an assault is an assault, irrespective of its seriousness. South Africans are fed up with crime, which affects women and children tremendously. Their calls for a justice system that is alive and responsive are justified. Enough is enough, says Thandi — and so many others.

Palesa Lebitse is a writer, feminist and law student with an interest in human rights